Citation Nr: 1646835 Decision Date: 12/14/16 Archive Date: 12/21/16 DOCKET NO. 12-04 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for residuals of a head injury. 3. Entitlement to service connection for a lung disability, claimed as chronic obstructive pulmonary disease (COPD), to include as secondary to asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife and daughter ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from August 1964 to February 1972. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from April 2009 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the benefits sought on appeal. The Veteran testified before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is before the Board. When this case was previously before the Board in May and December 2014, it was remanded for additional development. Subsequent rating decisions granted service connection for bilateral tinnitus and a corneal scar, right eye. The issue of entitlement to service connection for a lung disability, claimed as COPD, to include as secondary to asbestos exposure, is now before the Board for final appellate consideration. The issues of service connection for bilateral hearing loss and residuals of a head injury are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent medical evidence, and competent and credible lay evidence, of record does not demonstrate that the Veteran's COPD is related to active duty, to include asbestos exposure. CONCLUSION OF LAW COPD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303 , 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claims herein, VA met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The development requested by the Board's prior remands has been completed or attempted. Stegall v. West, 11 Vet. App. 268, 271 (1998). A November 2015 VA medical opinion adequately addresses questions posed by the Board's prior remands with respect to specific evidence in the record. The relevant law provides that a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). There are no laws or regulations which specifically address service connection for disability due to asbestos exposure. However, the VA Adjudication Procedure Manual, M21-1 MR, and opinions of the Court of Appeals for Veterans Claims and VA General Counsel provide guidance in adjudicating these claims. In 1988, VA issued a circular on asbestos-related diseases providing guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans' Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular since have been included in VA Adjudication Procedure Manual, M21-1 MR, part IV, Subpart ii, Chapter 2, Section C (December 13, 2005). In this regard, the M21-1 MR provides the following non-exclusive list of asbestos-related diseases/abnormalities: asbestosis, interstitial pulmonary fibrosis, tumors, effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, bronchial cancer, cancer of the larynx, cancer of the pharynx, cancer of the urogenital system (except the prostate), and cancers of the gastrointestinal tract. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (b). The M21-1 MR also provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (f). The M21-1 MR provides that a clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. Symptoms and signs include dyspnea on exertion, end-respiratory rales over the lower lobes, compensatory emphysema, clubbing of the fingers at late stages, and pulmonary function impairment and cor pulmonale that can be demonstrated by instrumental methods. See M21-1 MR, part IV, Subpart ii, Chapter 2, Section C, 9 (e). If a veteran was exposed to an herbicide agent during active service, certain disabilities shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). In this case, the Veteran served in the Republic of Vietnam during the relevant period, so exposure to herbicide is presumed. 38 C.F.R. § 3.307 (a). However, COPD is not a disease presumed related to herbicides, and medical evidence is needed to prove a causal connection in the Veteran's specific case. 38 C.F.R. §§ 3.307, 3.309. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran may not be granted service connection for a disability attributable to his use of tobacco during service. Pursuant to 38 C.F.R. § 3.300, service connection will not be considered for injury or disease attributable to a Veteran's use of tobacco during service for claims received by VA after June 9, 1998. The Veteran's claim was received in 2010. The Veteran contends that he has a lung disability as a result of active duty exposure to asbestos, including while inside tanks. The Veteran provided credible testimony during the March 2012 hearing that he had been diagnosed with COPD about 20 years earlier. He testified that he may have been exposed to asbestos during active duty while repairing brakes and wearing asbestos-lined gloves. He also testified that he began smoking at age 9, and doctors found a lesion on his lung in 1972. He stated that he had bronchitis at the end of active duty. He mentioned coughing and bronchitis during active duty as a result of exposure to dioxins in Vietnam, but also stated that no physician had ever related his COPD to dioxin exposure but physicians had related his COPD to asbestos exposure. The Board observes that during the appeal the Veteran has not otherwise pursued the theory that his COPD is related to dioxin exposure. Based on a thorough review of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim. Even conceding the Veteran was exposed to asbestos during service, the evidence does not show that the Veteran's COPD is was incurred or aggravated during active duty, to include exposure to asbestos or herbicide. Turning to the evidence of record, the Board first observes that there is no medical evidence in the record that the Veteran's exposure to herbicide caused or aggravated his COPD. Therefore service connection on this basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309; Combee, supra. The Veteran's service treatment records reflect that the he had an upper respiratory infection in May 1967. The service treatment records are negative for complaints, symptoms, findings or diagnoses related to COPD or asbestosis. The Veteran apparently was not provided a separation examination or asked to complete a separation report of medical history. The Veteran's post-service medical records are relevant negative for complaints, symptoms, findings or diagnoses for many years after his separation from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). A November 2011 VA treatment record details a follow-up for a lung nodule biopsy. It was noted that the biopsy was not malignant, was consistent with caseating granuloma, not classic for sarcoid and "definitely consistent with history of asbestosis." The reviewed stated that "[b]ased on history, imaging over several years and biopsy, I believe this to be an asbestos related scar and right now there is no sign of mesothelioma or cancer." March 2012 VA treatment records note that recent testing showed a larger lung mass and the Veteran underwent another biopsy. In a subsequent record, the provider noted that a March 2012 lung biopsy showed "non caseating granuloma - again, and no signs of fungal or mycobacterial disease - again...." In a March 2012 statement, the Veteran's treating VA physician relates that the Veteran had COPD and a "very strong history of asbestos exposure during his military career." The provider further noted that the Veteran has lung scarring and a lung mass that is caused by the asbestos exposure. The Board's December 2014 remand found that a July 2014 negative VA medical opinion was inadequate because it ignored positive medical evidence consisting of a November 2011 VA pulmonary test report and the March 2012 VA medical opinion. A February 2015 VA medical opinion by same examiner provides that the record contained no service medical record exposure to asbestos. The Veteran's current COPD was less likely as not (50 percent or greater probability (sic)) due to or related to asbestosis exposure. The examiner explained that a July 2013 x-ray revealed multiple nodules (while a biopsy of July 2011 was negative), and hyperventilation consistent with COPD in the absence of pleural calcification which was consistent with mesothelioma or asbestos exposure. A November 2015 VA medical opinion by a different examiner provides that the examiner reviewed the Veteran's eFolder. She stated that her comprehensive medical review of the clinical files, eFolder, CAPRI, lay statements, and current medical literature stood as the foundation for her independent medical opinion. She set forth a detailed recitation of the relevant medical history. She pointed out that the Veteran had smoked since age 10. The examiner first noted that the active duty and presumptive period (sic) medical records were silent for lung lesions and lung tissue changes related to exposure to asbestos. Therefore, it was LESS LIKELY THAN NOT (capitalization in original) that the Veteran's subjective statement of a 1972 lung condition was related to his exposure to asbestos. Alternatively, the active duty records clearly and unmistakably demonstrated a behavioral habit related to tobacco use. Second, the examiner reviewed numerous specific findings from the medical record in terms of current medical literature. She concluded that, collectively, it was AS LEAST AS LIKELY AS NOT (capitalization in original) that the radiographic evidence observed lung tissue changes were consistent with COPD and the Veteran's long past behavioral history of smoking because of the hyperinflation of lung fields suggestive of COPD, development and resolution of pulmonary nodules and noncaseating granulomatous lesions as well as scar tissue formation following localized bronchial infections and noninfectious processes arising from smoking. Alternatively, it was LESS LIKELY THAN NOT (capitalization in original) that the Veteran's lung conditions were related to, caused by and aggravated by his asbestos exposure because of the strong objective evidence of lung tissue changes consistent with smoking and the lack of any pathognomonic objective evidence for asbestos-related pleural plaques. Third, the examiner reviewed additional numerous specific findings from the medical record in terms of additional current medical literature. She concluded that therefore, it was LESS LIKELY THAN NOT (capitalization in original) that the Veteran's claimed lung condition was related to, caused by and/or aggravated by service and/or exposure to asbestos because of the lack of pathohistological evidence of asbestosis and strong objective evidence relating to non-necrotizing (noncaseating), non-infectious tissue reaction processes occurring within the lung moiety. Fourth, the examiner reviewed 10 November 2011 and 28 February 2012 VA mental health progress notes. She noted that VAMC clinical, histological and radiographic records as well as internal medicine and respiratory specialists, radiologist and pathologist medical notes provided clear and unmistakable evidence to support a diagnosis of COPD with related recurrent respiratory infections and non-infectious processes consistent in heavy smokers. Therefore, she noted that it was LESS LIKELY THAN NOT (capitalization in original) that the Veteran's claimed lung condition was related to, caused by and/or aggravated by service and/or exposure to asbestos because of the supportive clinical, histological and radiographic evidence of lung changes consistent with COPD and heavy smoking. Fifth, the examiner noted that the March 2012 addendum to a pulmonary medical note indicated a 'suspicion' of a malignancy in the right lung. Although that physician opined that "based on the doubling time, asbestos exposure and speculation" and "based on history imaging over several years and biopsy, I believe this to be an asbestos related scar and right now there is no sign of mesothelioma or cancer, I am highly suspicious for malignancy["], the examiner noted that the lung biopsies were not consistent for asbestos fiber pathology and/or diagnosis of mesothelioma, as well as [the fact that there was] strong radiographic evidence to support lung tissue changes consistent with COPD and clinical evidence of heavy, long-term smoking. Therefore, it is LESS LIKELY THAN NOT (capitalization in original) that the Veteran's claimed lung condition was related to, caused by and/or aggravated by his exposure to asbestos because of the lack of objective clinical, radiographic and pathohistological evidence of asbestosis in the lung tissue. Sixth, the examiner noted that February 2012 pulmonary function testing (PFT) was consistent with severe airway obstructive disease. Therefore, it was as least as likely as not that these findings were consistent with restrictive airway disease to include COPD. Alternatively, it would be mere speculation (italics in original) to assume that these findings were specific for asbestosis because of the lack of confirmatory radiographic and histopathologic findings. Seventh, the examiner noted that the Veteran had a past smoking history of 2 packs a day starting at the age of 9/10. Current medical literature broadly defined COPD as a respiratory condition that encompasses several clinical and pathologic entities, primarily emphysema and chronic bronchitis. Evidence of airflow obstruction that is chronic, progressive, and for the most part fixed characterizes COPD. Notwithstanding the presence of irreversible airflow obstruction in COPD, most persons (~60%-70%) demonstrate a reversible component of airflow obstruction when tested repeatedly. The leading cause for emphysema and COPD was smoking. Mason stated "Cigarette smoking leads to inflammatory cell recruitment, proteolytic injury to the extracellular matrix (ECM), and cell death" (Mason: Murray and Nadel's Textbook of Respiratory Medicine, 5th edition). Therefore, it was as least as likely as not that the Veteran's claimed respiratory conditions were caused by, aggravated by, related to and nexus of his many, many years of smoking. Last, the examiner noted that she was in total agreement with the June (sic) 2014 and February 2015 examiner's statement that "THE CURRENT RESIDUAL COPD IS LESS LIKELY AS NOT (50% OR GREATER PROBABILITY) DUE TO OR RELATED TO ASBESTOS EXPOSURE AS THE XRAY OF THE CHEST 7/8/13 REVEALED MULTIPLE NODULES (BIOPSY 7/28/11 NEGATIVE) AND HYPERVENTILATION CONSISTENT WITH COPD IN THE ABSENCE OF PLEURAL CALCIFICATION WHICH IS CONSISTENT WITH MESOTHELIOMA OF ASBESTOS EXPOSURE (capitalization in original)." The Board finds that the November 2015 medical opinion constitutes probative evidence against the claim and outweighs the November 2011 PFT report and the March 2012 VA medical statement from the Veteran's treating VA physician. It is based on a very detailed and extremely thorough review of the medical record. The examiner explained her opinions with references to the Veteran's active duty and post-service medical history in terms of the medical literature. Thus, the opinion contained not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet.App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). The November 2015 opinion included specific consideration of the March 2012 VA treating physician's supportive statement, but noted that the lung biopsies were not consistent for asbestos fiber pathology and/or diagnosis of mesothelioma and there was strong radiographic evidence to support lung tissue changes consistent with COPD and clinical evidence of long-term smoking. The Board acknowledges the assertions by the Veteran in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that any such assertions are credible. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, supra. Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, the Veteran's contentions do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran has a lung disability, claimed as COPD, as a result of active duty, to include asbestos exposure) falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428 (2011); Jandreau, 492 F.3d at 1377 n.4. As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. In sum, the preponderance of the evidence is against the claim of service connection for a lung disability, claimed as COPD, to include as secondary to asbestos exposure. As the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a lung disability, claimed as COPD, to include as secondary to asbestos exposure, is denied. REMAND The Board's December 2014 remand observed that a July 2014 VA medical opinion had ignored the Board's May 2014 remand conclusion that the Veteran's testimony as to active duty head injuries was credible. The Board's December 2014 remand again requested that VA obtain a medical opinion for the Veteran's head injury claim. The Board's request specifically referred to the Veteran's in-service head injuries. Nevertheless, a February 2015 VA medical opinion relates that it was less likely as not that the Veteran suffered a traumatic brain injury during his time spent in the military. The examiner reiterated that there was no evidence of a head injury during active duty. The Board's December 2014 remand also requested that VA obtain a medical opinion for the Veteran's hearing loss claim. The VA examiner was specifically requested to address the significance of the Veteran's testimony that his post-service occupational noise exposure was not severe or at all comparable to his in-service noise exposure. Nevertheless, a February 2015 VA medical opinion relates that the Veteran had significant noise exposure both during and after military service. As a result, the development requested by the Board's December 2014 remand was not fully completed with respect to the Veteran's claims for service connection for residuals of a head injury and service connection for bilateral hearing loss. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. See Stegall, supra. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. Accordingly, the case is REMANDED for the following action: 1. Forward copies of relevant records from the Veteran's eFolders to the examiner who provided the February 2015 VA medical opinion (or a suitable substitute if this individual is unavailable) for an addendum to determine the nature, extent and etiology of any bilateral hearing loss that may be present. Following a review of the relevant medical evidence and the medical history (including that set forth above), the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current bilateral hearing loss is causally related to the Veteran's in-service noise exposure. The Board advises the examiner that the absence of in-service evidence of a hearing loss during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner is requested to address the significance of the Veteran's testimony that his post-service occupational noise exposure was not severe or at all comparable to his in-service noise exposure. The examiner must consider the Veteran's lay statements regarding in-service symptoms and post-service continuity of symptoms. The examiner is requested to provide a rationale for any opinion expressed. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 2. Forward copies of relevant records from the Veteran's eFolders to the examiner who provided the February 2015 VA medical opinion (or a suitable substitute if this individual is unavailable) for an addendum to determine the nature, extent and etiology of any residuals of a head injury that may be present, to include chronic headaches. Following a review of the relevant medical evidence and the medical history (including that set forth above, which includes active duty head injuries), the examiner is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that any current residuals of a head injury are causally related to the Veteran's in-service head injuries. In doing so, the examiner is requested to address the significance of the Veteran's 1997 post-service head injury. The examiner is specifically advised that the Veteran's testimony as to active duty head injuries is credible. The examiner must also consider the Veteran's lay statements regarding in-service symptoms and post-service continuity of symptoms. The examiner is requested to provide a rationale for any opinion expressed. An additional examination of the Veteran should be scheduled only if deemed necessary to provide the requested opinion. 3. Then, readjudicate the Veteran's claims. If either of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2015). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs